Opinion
NO. 2015-CA-000616-MR
03-11-2016
CHARLES L. WALKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gene Lewter Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 12-CR-00161 OPINION
AFFIRMING BEFORE: COMBS, KRAMER AND NICKELL, JUDGES. COMBS, JUDGE: Charles L. Walker, Appellant, brings this appeal of the revocation of his probation by the Campbell Circuit Court. He argues that the trial court abused its discretion when it revoked his probation after he failed a breathalyzer test. Walker had violated his probation once before this incident. After our review of the record and the applicable law, we affirm.
Relevant Facts
Charles Walker was indicted in the Campbell County Circuit Court for one count of burglary in the second degree. He entered a guilty plea and was sentenced to five-years' imprisonment. Walker filed a motion for shock probation, claiming that he had secured a bed at the Grateful Life Center, a long-term recovery treatment facility. The court granted his motion for shock probation on the condition that he enter the Grateful Life Substance Abuse Treatment Program.
Approximately two years later, Walker's probation officer filed an affidavit stating that Walker had violated his probation because he failed to complete his substance abuse treatment. The affidavit also stated that Walker had absconded and was concealing his whereabouts. A warrant for his arrest was issued.
Following a revocation hearing, the court withdrew the affidavit of the probation officer and found Walker in contempt for his failure to abide by the court's order. The court ordered for Walker to remain incarcerated until bed space became available at the inpatient substance abuse treatment program at the Grateful Life Center.
Walker's probation officer later entered a special supervisory report, stating that it would be a few months before a bed became available for him. The trial court then entered an order permitting Walker to attend an intensive outpatient program instead of inpatient treatment.
Walker's probation officer next filed an affidavit stating that Walker had violated the conditions of his release because he had not completed the Droege House Program following his failed breathalyzer test. The affidavit was later corrected to state that Walker did not fail to complete the Droege House program; instead, it stated that he "was transitioned and was then terminated from the transition." Citing Walker's prior criminal convictions and his failure to complete treatment, the trial court revoked Walker's probation and sentenced him to five-years' imprisonment. This appeal follows.
Analysis
Walker's sole argument is that the trial court abused its discretion when it revoked his probation after he failed an alcohol test.
The trial court's order revoking probation recited as follows:
The Defendant, Charles Walker, violated the terms and conditions of his probation when he failed to complete treatment and used alcohol. The Defendant has been provided with an opportunity at inpatient treatment which he failed. He was provided an opportunity to complete Intensive Outpatient treatment which he failed. He was convicted of Burglary 2nd. He has been convicted in the past for several assaults, alcohol intoxication, disorderly conduct, violation of emergency protection order, probation violations, operating a motor vehicle under the influence, terroristic threatening, theft by unlawful taking and flagrant non support[.] The Defendant continued to use alcohol. He continues to fail to follow the rules set or take advantage of treatment options. Based on the Defendant's past criminal history, continual use of alcohol and failing to abide by the Court['s orders] makes the Court believe that he is a threat to the community and is not able to [be] managed in the community.
The leading authority on probation revocation is Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014), which holds as follows:
A decision to revoke probation is reviewed for an abuse of discretion.... Under our abuse of discretion standard of review, we will disturb a ruling only upon finding that the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. (internal quotation marks and citation omitted).In Andrews, our Supreme Court held that except for "[c]ertain violations, such as absconding or receiving a new felony conviction ... KRS 439.3106 must be considered before probation may be revoked." Id. at 778-79.
KRS 439.3106 provides as follows:
Kentucky Revised Statutes. --------
Supervised individuals shall be subject to:The Andrews Court elaborated as follows:
(1) Violation revocation proceedings and possible incarceration for failure to comply with the conditions of supervision when such failure constitutes a significant risk to prior victims of the supervised individual or the community at large, and cannot be appropriately managed in the community; or
(2) Sanctions other than revocation and incarceration as appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for, and availability of, interventions which may assist the offender to remain compliant and crime-free in the community.
By requiring trial courts to determine that a probationer is a danger to prior victims or the community at large and that he/she cannot be appropriately managed in the community before revoking probation, the legislature
furthers the objectives of the graduated sanctions schema to ensure that probationers are not being incarcerated for minor probation violations.Id. at 448 S.W.3d at 779.
After conducting this analysis, our Supreme Court ultimately concluded that the trial court did not abuse its discretion when it revoked Andrew's probation and held as follows:
If the trial court had based its decision solely on Andrews's violation of the condition that he remain drug-free, we would have had to deem that decision an abuse of discretion under the new state of the law. However, the trial court plainly considered a variety of factors, and specifically considered the criteria in KRS 439.3106. The trial court found that Andrews's recent drug use and past history strongly suggested that he was at great risk of reoffending and committing future drug crimes in the community.[] While Andrews's criminal history could not be the sole basis for his revocation, it was appropriately considered when assessing the risk posed by his continued probation. Furthermore, the trial court appropriately questioned whether Andrews's entry into a drug treatment program was truly "voluntary," considering that he only sought treatment at LCRM after he knew he had been "caught" violating the conditions of his probation. Andrews's entry into a treatment program only after testing positive for methamphetamine, coupled with his initial refusal to accept treatment, support the trial court's conclusion that Andrews could not be properly managed in the community. In sum, although Andrews's situation was not clear-cut and another judge may have opted for a lesser sanction, the trial court's decision to revoke Andrews's probation was neither arbitrary nor unreasonable.Id. at 780-81 (Ky. 2014).
In the case before us, Walker contends that the trial court's written findings were insufficient. In McClure v. Commonwealth, 457 S.W.3d 728 (Ky. App. 2015), a panel of this Court stated that:
McClure alternatively contends that the trial court's finding of significant risk was insufficient because it did not include an explanation of "how attempting to alter a drug screen posed a danger to society." However, this argument lacks legal support. The statute requires a trial court to consider "whether a probationer's failure to abide by a condition poses a significant risk to prior victims or the community at large." Neither KRS 439.3106 nor Andrews require anything more than a finding to this effect supported by the evidence of record. The trial court complied with this requirement and it owed McClure no further explanation.Id. at 733 (citation omitted). We are similarly persuaded that the trial court was not clearly erroneous in finding that Walker is "a threat to the community and is not able to [be] managed in the community."
Walker has also argued that failing a breathalyzer -- even in light of his previous failure to complete treatment -- constituted an insufficient basis to revoke his probation. In McVey v. Commonwealth, a panel of this Court affirmed the trial court's revocation of probation, noting that "[t]he record reflects that the trial court appropriately considered McVey's completion of the drug court program and subsequent relapse in assessing whether the imposition of some other accountability measure would be fruitless." 467 S.W.3d 259, 263 (Ky. App. 2015).
Walker's case was not a situation in which the trial court revoked his probation where he had no previous violations. In McClure, we held that the trial court did not abuse its discretion in revoking the defendant's probation when he had two prior drug-related probation violations. 457 S.W.3d at 732. Considering all the circumstances of Walker's case, we conclude that the trial court did not abuse its discretion when it elected to revoke his probation. He had previously been given a chance to improve his conduct, and he failed. Therefore, we conclude that the trial court did not abuse its discretion in deciding against sanctions other than incarceration. In the language of Andrews, supra, we note that "although [Walker's] situation was not clear-cut and another judge may have opted for a lesser sanction, the trial court's decision to revoke [Walker's] probation was neither arbitrary nor unreasonable." Id. at 781.
Conclusion
We hold that Walker has failed to establish that the trial court abused its discretion. The trial court had previously attempted to obtain treatment for Walker, and he failed to complete treatment as required by his probation -- not once but twice.
We affirm the judgment of the Campbell Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Gene Lewter
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky